THE HIGH COURT OF SINDH,CIRCUIT COURT,LARKANA
Civil Revision No.40 of 2002
Before: Mr.Justice Ali Sain Dino Metlo
Abdul Kadir son of Ahmed Khan Massan,
Muslim, adult, aged about 32 years,
Octroi Contractor resident of
Massan Mohalla, Larkana. Applicant
Versus
1. The Town Committee Nasirabad,
to be represented through
their Town Officer.
2. The Additional Chief Secretary,
Local Government Department,
Government of Sindh,
Karachi.
3. The Government of Sindh through
District Coordination Officer,
Larkana.
4. Mr.Javed Shah, Station House Officer,
Police Station, Nasirabad.
5. The Director Local Government Larkana,
District at Larkana.
6. The Assistant Director Local Government,
Larkana. Respondents
Date of hearing 01.11.2006
Mr.Syed Abdul Rasheed Shah, advocate for the applicant.
Mr.Gulab Rai Jesrani, advocate for the respondents.
Mr.Muhammad Bachal Tonyo, Additional A.G.
JUDGMENT
Ali Sain Dino Metlo J. By this revision, applicant Abdul Kadir Massan has challenged the order dated 10.02.2003 of the District Judge, Larkana, dismissing his appeal as time-barred. The appeal was filed by him against judgment and decree passed by the IInd Senior Civil Judge, Larkana, dismissing his suit on 26.11.2002.
2. Briefly, the facts are that the appellant, claiming to have obtained the contract of collecting octroi tax and parking fee within Nasirabad Town for a period of nine months from October, 1992 to June, 1993 for a total consideration of Rs.6,94,500/- payable in monthly installments of Rs.77,167/-, from the respondent No.1, filed a suit bearing F.C.Suit No.79 of 1993 for declaration to the effect that either he was entitled to adjustment of loss amounting to Rs.250,000/- allegedly suffered by him due to illegal acts of the respondent No.4 or he was entitled to recover it from the respondent No.1 (Town Committee, Nasirabad) and the respondent No.4, jointly and severally. He also prayed for injunction to restrain the respondent No.1 to 3, 5 and 6 from cancelling the contract due to non-payment of instalments of lease money. According to him, respondent No.4 (Javed Shah), who at the relevant time was the Station House Officer of Police Station Nasirabad, demanded illegal gratification from him and on his refusal he created hindrance in the collection of tax and fee by instigating owners of buses, wagons, pickups and trucks not to pay him any tax or fee. The remaining respondents allegedly did not properly assist him in making the recovery due to which he suffered loss amounting to Rs.2,50,000/-.
3. Respondent No.1, in his written statement, denied the allegation and contended that the suit was filed only to avoid payment of unpaid lease money amounting to Rs.2,50,000/-. It was further contended that the Town Committee, at the request of the appellant, had written a letter to the Commissioner Larkana for taking appropriate actin against the respondent No.4.
4. The trial court on appreciation of evidence came to the conclusion that the respondent No.1 was not at fault for the loss, if any, suffered by the appellant and dismissed the suit on 26.11.2003, observing that he would be at liberty to file separate suit against the respondent No.4 for his alleged wrongful acts. His appeal was dismissed as time-barred and his application for condonation of delay was dismissed by the District Judge on 10.02.2003.
5. Learned counsel for the applicant argued that the appeal was not time-barred and in any case the District Judge should have condoned the delay, as the appellant had shown sufficient cause for not filing it within time. I am afraid, the argument is without any weight. The judgment was passed on 26.11.2002, the appellant applied for copies on 21.12.2002 which were delivered to him on 18.1.2003 and the appeal was filed on 4.2.2003 i.e. after 70 days of passing the judgment, excluding the day on which it was announced. If time of 29 days from 21.12.2002 to 18.1.2003 consumed in obtaining copies is excluded, the appeal was barred by 11 days. The contention of the appellant that after receiving copies on 18.1.2003 he had decided to file appeal on 27.1.2003 but could not do so as on 25.1.2003 his cousin was abducted, was not accepted by the District Judge, and rightly so, because the first information report (FIR) regarding the incident of abduction showed that one Ghulam Yasin was abducted on 25.1.2003 at 2045 hours from his house situated in Nasirabad while the appellant was resident of Larkana. He was neither complainant nor cited as a witness in the case. The District Judge rightly held that it was not sufficient cause for not filing the appeal within time. Besides, the appeal had become time-barred before the alleged incident of abduction which took place on 25.01.2003 at 8:45 p.m. Even if the appeal was filed on 25.1.2003 it would have been barred by one day for which there was no explanation.
6. According to his own showing, he wanted to file appeal on 27.1.2003, perhaps under some wrong advice. The contention of the learned counsel that the period between the date of judgment and the date of signing the decree has to be excluded in computing the period of limitation is also without force. According to order 20 rule 7 the Code of Civil Procedure, 1908, the date of decree shall be the date of pronouncing judgment and not the date of preparation of decree. In the case of East and West Steamship Company versus Queen’s Land Insurance Limited, reported in PLD 1960 (WP) Karachi 840, this question was authoritatively decided by a full bench of the erstwhile High Court of West Pakistan (Karachi Bench) and it was held that period between the date of judgment and the date of signing the decree cannot be excluded in computing the period of limitation for filing appeal.
8. It is thus clear that the appeal was time-barred and sufficient cause was not shown for condoning the delay and, therefore, the revision being, without any merit, was dismissed by a short order passed on 1.11.2006 and these are the reasons.
JUDGE